|Public Prosecutor v Moad Fadzir bin Mustaffa and another  SGHC 33|
Decision Date: 15th February 2019
Court: High Court
Judges: Choo Han Teck J
Criminal Law – Statutory offences – Misuse of Drugs Act
Summary of Facts
- The accused, is Moad, and the second accused, Zuraimy, is a friend of the accused.
- The accused picked the second accused up and waited for someone to go up to their car to pass them a white plastic bag, which they paid $50 for.
- The accused, passed the plastic bag to the second accused who tied it before placing it in the accused’ bag. The second accused was dropped by the accused from the vehicle, who later arrested by officers of the Central Narcotics Bureau (CNB). The accused was also arrested slightly later.
- The plastic bag had 4 evenly packed taped bundles of granular substances analysed to be 36.93g of diamorphine.
Charge: Both accused and second accused charged for trafficking this 36.93g of diamorphine.
1. Charges against accused: Under s 34 of the Penal Code read with ss 5(1) and 5(2) of the Misuse of Drugs Act (MDA), with the accused to be in possession of the four packets of diamorphine for the purposes of trafficking.
2. Charges against second accused: The charge against the second accused directly corresponds to the charge against the accused and that is, the second accused was charged for acting in furtherance of a common intention of the above mentioned charge for the accused.
1. In regard to the accused;
- There is no evidence that helped Moad rebut the presumption of trafficking under section 17 of the Misuse of Drugs Act.
- Accused tried to stop the admission of 2 of the statements recorded an hour after his arrest.
- Judge found that Moad made those statements freely and without coercion and so admitted them into evidence and those two statements were particularly incriminating.
- In his cautioned statement, Moad did not deny any wrongdoing or raised any fact relevant to his defence in court.
- He stated: “I have nothing to say at all. I am now confused and unable to think properly”. He stated when he was caught “They asked me to pick up at Toa Payoh”.
- Senior Station Inspector Tony Ng asked “what is inside the four taped bundles?” and Moad replied, “They told me to be careful, is heroin”.
- The accused’ defence to the charge was that he thought that the 4 taped packets contained cigarettes but this was not what he said in his cautioned statement.
- The only evidence that he had where he thought that the packets held cigarettes, was in his testimony, which was not enough for the judge.
- The fact that he could not give a good account as to how he could have mistaken four packets of hard, irregularly shaped granular substances for cigarettes, this defence was contradicted by his admission earlier.
2. In regard to the second accused;
- Second accused’ defence was that he received a call from the accused who agreed to accompany him to Toa Payoh to celebrate the end of the accused’ course at Singapore Polytechnic which did not enhance the credibility of his defence as it came out late and there was no other evidence to prove the same.
- The judge was satisfied that Zuraimy’s role in this escapade is one of an abettor who arranged the drug transaction.
Joint possession over the drugs
- The Prosecution stated that the second accused was in joint possession of the drugs because he had been instrumental in placing the accused in physical possession of the drugs and that the case of Muhammad Ridzuan bin Md Ali v Public Prosecutor  3 SLR 721 should be followed.
- However, the judge disagreed and stated that the facts differed as the two accused in the same case were in joint possession of drugs there as they entered into a partnership to purchase and then sell the drugs. While in this current case, there was no evidence that there was a pre-arranged plan between the accused and second accused in relation to the drugs. Therefore, there was nothing to say that the second accused could be said to have retained control and thus possession over the drugs.
- The accused’ testimony that the second accused’ told him to keep the drugs was not convincing as there was no pre-arranged plan between the parties to sell or subsequently deal with the drugs, and it was the accused who paid for the drugs and kept it in his physical possession.
Assessment on whether or not the second accused is constructively liable for capital offence of trafficking on the basis that there was common intention between the accused and second accused
- If the Prosecution were to charge a person with a common intention to possess drugs for the purposes of trafficking, they are obliged to prove the elements of that phrase, namely, to prove beyond a reasonable doubt the following three elements: 1. Criminal act element, 2. Common intention element, and 3. Participation element
- Criminal act element and the participation element were made out because Zuraimy abetted Moad in obtaining actual physical possession of the Drugs by arranging and driving Moad to Toa Payoh to collect the Drugs.
- Although Zuraimy may have known the quantity and the nature of the Drugs, this does not necessarily imply that Zuraimy knew Moad was purchasing the Drugs for the purposes of trafficking. Zuraimy might possibly have thought that Moad purchased these drugs for his own consumption. Given this uncertainty, the judge was not satisfied that the Prosecution had proven beyond a reasonable doubt that Zuraimy had the common intention with Moad , for Moad to be in possession of the 36.93g of diamorphine for the purposes of trafficking.
- The judge stated that Zuraimy was the middle man in this case.
- The judge was satisfied that the Prosecution had proved its case against Moad , and therefore found him guilty as charged and sentenced him to suffer death.
- The judge stated that the second accused was the middle man in this case, and that the particulars of his charge should more accurately reflect his role as that of an abettor.
- The judge amended the charge to include the same. The judge found the second accused guilty of the amended charge and convicted him according to the charge.